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Email: contact@niwus.com 

LPY Law Group

How can I extend H-1B status for three (3) years at a time beyond the six-year maximum period?

You will be eligible to extend H-1B status in three-year increments beyond the six-year limit if your I-140 petition has been approved but you are unable to obtain green card due to the retrogression of priority date.

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Who can extend H-1B status beyond the six-year maximum period?

A foreign worker can obtain an extension of H-1B status beyond the 6-year maximum period if he or she meets one of the following conditions:

  1. 365 days or more have passed since the filing of a Labor Certification (Form ETA-9089), or an employment-based immigrant petition (Form I-140) if Labor Certification is not required; or
  2. An employment-based immigrant petition (Form I-140) has been approved but due to the retrogression of priority date, the foreign worker is unable to obtain green card.

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What is Labor Condition Application (LCA)?

H-1B petitioning employer is required to file a Labor Condition Application (LCA) with the Department of Labor (DOL) attesting to a number of items, including payment of prevailing wages for the position, and the working conditions offered. The LCA must be certified by DOL before the H-1B petition is filed with USCIS.

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How long can a foreign worker be in H-1B status?

Under current law, a foreign worker can be in H-1B status for a maximum period of six (6) years at a time. After being on H-1B for six years, the foreign worker must remain outside the United States for at least one year before another H-1B petition can be approved. There are, however, a few exceptions to the six-year limit, which allow a foreign worker to extend their H-1B status beyond six years.

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I was in H-1B status working in a company for a few months 3 years ago, and then I changed my status from H-1B to F-1 student. Now I found a job and my employer is willing to file H-1B for me, am I subject to the annual cap?

No, a foreign worker is not subject to the annual cap if he/she used the H-1B quota in the past 6 years.

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Who can file H-1B petition for a foreign worker?

H-1B petition must be filed by a U.S. employer. The U.S. branch or subsidiary of a foreign company is considered as a “U.S. employer” for H-1B purposes if its U.S. entity meets the following requirements: 1) it engages a person to work within the U.S.; 2) it has the authority to hire, pay, fire, and supervise employees; and 3) it has an IRS Tax ID Number, also known as Employer ID Number (EIN).

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I am currently in H-1B status working in a company, am I subject to the annual cap if I change employment and my new employer files an H-1B petition in my behalf?

No, current H-1B workers who have used the H-1B quota are not subject to the annual cap.

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I obtained a Masters Degree from a U.S. university, but my graduate school major was not related to the job offer. My employer will file an H-1B petition based on my bachelor's Degree major. Can I use the additional 20,000 H-1B visas for advanced degree professionals?

Yes. As long as you have obtained an advanced degree in the U.S., you can use the additional 20,000 H-1B visas for advanced degree professionals.

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When can U.S. employers file new H-1B petitions under the 2010 FY cap?

The earliest date for U.S. employers to file new H-1B petitions under the 2010 FY cap is April 1, 2009.

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I obtained a Masters Degree from a Canadian university, can I use the additional 20,000 H-1B visas for advanced degree professionals?

No. The additional 20,000 H-1B visas are only granted to foreign workers who obtained advanced degree in the U.S.

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How many new H-1B visas are available for the 2010 fiscal year?

The new H-1B visas available for FY 2010 are 65,000. In addition, 20,000 foreign workers who obtained advanced degree in the U.S. are exempted from the 65,000 cap.

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How does the USCIS determine whether a baccalaureate degree is the minimum requirement for a specific occupation?

It is not enough that an employer requires bachelor’s degree for a specific position. Pertinent laws set some objective standards for determining whether a specific occupation requires a bachelor’s degree for entry into the occupation. For more information regarding the standards to determine the requirement of bachelor’s degree, please read our special section on Standards to Determine Specialty Occupation.

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How do I know whether my job is a “specialty occupation”?

While some occupations are clearly “specialty occupations” as defined by laws and regulations, others are not so clear and the USCIS will make a decision on a case-by-case basis. For some professions such as computer programmer, general manager, librarian, consultant, designer, etc., determination of “specialty occupation” is an extremely complicated process and many factors should be considered. We suggest that H-1B petitioners or beneficiaries consult with an experienced immigration attorney regarding their specific cases.

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How does the USCIS determine whether a job is a “specialty occupation” for H-1B purposes?

When determining whether a specific position is a “specialty occupation”, the USCIS will look into the job title, the job duties to be performed by the foreign worker, and the complexity of the business, etc. For more information regarding the standards to determine specialty occupation, please read our special section on Standards to Determine Specialty Occupation.

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What is a specialty occupation?

A specialty occupation requires theoretical and practical application of a body of specialized knowledge and at least a bachelor’s degree or its equivalent for entry into the occupation in the U.S. Examples of specialty occupation include, but are not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, etc.

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What is an H-1B? How to apply for an H-1B?

The H-1B is a nonimmigrant classification granted to a foreign worker who is employed temporarily in a specialty occupation, or a fashion model of distinguished merit and ability. For a Step by Step H-1B Processing Flowchart, please click Here.

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